CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 457 and 458 of 1966. Appeals, by special leave from the judgment and order dated April 27, 1964 of the Allahabad High Court in Second Appeals Nos. 4940 and 3660 of 1961. S. P. Sinha and Shaukat Hussain, for the appellants (in both the appeals) . J. P. Goyal and G. Nabi Untoo, for the respondent (in both the appeals). The Judgment of the Court was delivered by Ramaswami, J. In the suit which is the subject matter of these appeals the plaintiff alleged that one Dwarka Prasad took a loan of Rs. 1700 from Madho Ram, father of the defendants, and that on 27th July, 1922, Dwarka Prasad along with one Mst. Kunta, his maternal grand mother, executed a possessory mortgage deed of the disputed house for Rs. 1700 in favour of Madho Ram. The terms of the mortgage deed were that the mortgagor was to pay interest of Rs. 12/’12/- per month out of which the rent amounting to Rs. 6/- which was the agreed usufruct of the house in suit was to be adjusted and the mortgagor was to pay Rs. 6/12/- per month in cash towards the balance of the interest. The parties agreed that the mortgage would be redeemable within twenty years after paying the principal, amount and that portion of interest which was not discharged-by the usufruct and other amounts. When Dwarka Prasad was unable to PAY the amount of Rs. 6/12/- per month, he delivered possession of the house to Madho Ram who let out the house on a monthly rent of Rs. 25. The mortgagors Dwarka Prasad and Mst. Kunta died leaving Mst. Radha Bai as Dwarka Prasad’s heir. Radha Bai sold the house in dispute to the plaintiff on 2nd February, 1953 and executed a sale deed. The plaintiff, therefore, became entitled to redeem the mortgage and asked the defendants to render accounts. The defendants contested the suit on the ground that Madho Ram was not the mortgagor nor were the defendants mortgagees. It was alleged that in the locality where the house was situated, there was a custom of paying Haqe-chaharum and to avoid that payment, the original deed dated 27th July, 1922 was drafted and executed in the form of a mortgage though it was actually an out-right sale. According to the defendants, the house was actually sold to Madho Ram and was not mortgaged. The defendants also pleaded that if the deed dated 27th July, 1922 was. held to be a mortgage, the mortgagees were entitled to get the payment of Rs. 6442/8/- as interest, Rs. 2315 as costs of repairs etc. The trial court held that the deed dated 27th July, 1922 was a Mortgage deed, that Dwarka Prasad did not sell the house to Madho Ram and that the plaintiff was entitled to redeem the mortgage on payment of Rs. 1709/14/-. The trial,court accordingly decreed the plaintiffs suit for redemption on payment of Rs. 1709/14/-. Against the judgment of the trial court the defendants preferred an appeal before the District Judge, Varanasi, who allowed the appeal and dismissed the plaintiff’s suit. The plaintiff took the matter in second appeal to the High Court which framed an issue and remanded the case back to the lower appellate court for a fresh decision. The issue framed by the High Court was "’Have the defendants become the owners of the property in dispute by adverse possession ?" The High Court directed the lower appellate court to decide the question of admissibility of Exts. A-25 and A26. After remand the lower appellate court held that the deed dated 27th July, 1922 was a mortgage deed and not a sale-deed, and, therefore, the plaintiff was entitled to redeem the mortgage. The lower appellate court further held that the defendants had failed to prove that they had acquired title by adverse possession. The lower appellate court made the following order
" The appeal is allowed with half costs in
this way that the suit is decreed for the
redemption of the mortgage in question if the
plaintiff pays within six months Rs. 1700 as
principal, Rs. 9.87 N.P. Prajawat paid before
this suit and any Prajawat paid by the defen-
dants during the pendency of this suit till
the plaintiff deposits the entire sum due
under this decree and the interest at the rate
of Rs. 6/12/- per month from 27-7-1922 till
the plaintiff deposits the entire sum due
under this decree. The costs of the trial
court are made easy. Let the preliminary
decree under Order 34, R.7, C.P.C. be modified
accordingly". Against the judgment and decree of the lower appellate court both the plaintiff and the defendants filed appeals before the’ High Court. The plaintiff prayed that the decree of the lower appellate court should be set aside and the decree of the trial court should be restored.’ The defendants, on the other hand, prayed that the decree of the lower courts should be set aside and the plaintiffs suit should be dismissed with costs. By its judgment dated 27th April, 1964 the High Court dismissed the second appeal preferred by the defendants but allowed the plaintiffs appeal and set aside that judgment of the lower appellate court and restored the Judgment of the trial Court. The High Court further remanded that case of lower appellate court with the direction that "the defendants be asked to render accounts before they claim any payment from the plaintiff at the time of redemption of the mortgage". The present appeals are brought by special leave against the judgment of the Allahabad High Court dated 27th April, 1964 in second Appeals Nos. 4940 and 3660 of 1961. In support of these appeals it was contended by Mr. Sinha that the deed Ex. 4 dated, 27th July, 1922 was a sale deed and not a mortgage deed. It was pointed out that there was a subsequent deed of sale dated 8th October, 1922 Ex. A-26 which is named ’Titimma Bainama’. The contention was that the document Ex. 4 dated 27th July, 1922 must be construed along with Ex. A. 26 which forms part of the same transaction and so construed the transaction was not a usufructary mortgage but was an outright sale. We are unable to accept the argument put forward on behalf of the appel lant. Ex. A.26 dated 8th October, 1922 is not a registered document, and is hence not admissible in evidence to prove the nature of the transaction covered by the registered mortgage deed Ex. 4 dated 27th July, 1922. If Ex. 4 is taken by itself, there is no doubt that the transaction is one of mortgage. The document Ex. 4 recites that in consideration of money advanced the executants "mortgage the said house ’Bhog Bhandak’ bearing No. 64/71 situate Mohalla Gola Dina Nath." Clause 2 provides a period of twenty years for redemption of the mortgage. Clause 6 of the document stipulates that the cost of repairs, will be borne by the mortgagors. Clause I states
"That the said sum of Rupees Seventeen hundred
half of which is Rupees Eight hundred and
fifty will carry interest at the rate of
twelve annas per cent monthly. The sum of
Rupees six will be deducted towards rent
monthly from the interest which will accrue.
’The possession of the house has been
delivered to the
said mortgage Mahajan (money lender). The
mortgagors will pay the balance of Rupees six
annas twelve month by month to the said
mortgagee after deducting the rent of Rupees
six after giving the possession of the said
house and shop".
Clause 4 provides:
"That we will go on paying the said Mahajan
the sum of Rupees six twelve annas the balance
of the interest monthly. If the whole or part
of the interest remains unpaid we will pay at
the time of redemption. if this amount of
interest is not paid the said house shall not
be redeemed". The reading of these terms clearly shows that Ex. 4 was a mortgage deed and not a sale deed. It was contended on behalf of the appellants that in order to avoid the payment of Haqe-chaharum, the original deed dated 27th July, 1922 was drafted and executed in the form of a mortgage but it was actually meant to be an outright sale. In support of this argument reference was made to Ex. A.26 dated 8th October 1922. As we have already said Ex. A.26 was required to be registered under section 54 of the Transfer of Property Act. In the absence of such registration this document cannot be received in evidence of any transaction affecting the property in view of s. 49 of the Registration Act. It was, however, urged on behalf of the appellants that the effect of section 4 of the Transfer of Property Act was not to make section 49 of the Registration Act applicable to documents which are compulsorily registrable by the provisions of s. 54, paragraph 2 of the Transfer of Property Act. In support of this contention reliance was placed on the decision of the full bench of the Allahabad High Court in Sohan Lal & Ors. v. Mohan Lal & Ors. (1) Section 4 of the Transfer of Property Act states
"The chapters and sections of this Act which
relate to contracts shall be taken as part of
the Indian Registration Act, 1872.
And sections 54, paragraphs 2 and 3, 59, 107
and 123 shall be read as supplemental to the
Indian Registration Act, 1908".
Section 54 of the Transfer of Property Act
reads
" "Sale" is a transfer of ownership in
exchange for a price paid or promised or part-
paid and part-promised. (1)I.L.R. 50 All. 986.
such transfer, in the case of tangible
immovable of the value of one hundred rupees
and upwards, or in the case of a reversion or
other intangible thing, can be made only by a
registered instrument.
In the case of tangible immovable property, of
a value less than one hundred rupees,
such_transfer may be made either by a
registered instrument or by delivery of the
property".
Section 17 of the Registration Act states:
"17. (1) The following documents shall be
registered if the property to which they
relate is situate in a district in which,
and,if they have been executed on or after the
date on which, Act No. XVI of 1864 or the
Indian Registration Act, 1866 or the Indian
Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or
comes into force, namely:
(a) instrument of gift of immoveable
property;
(b) other non-testainentary instruments
which purport or operate to create, declare,
assign, limit or extinguish, whether in
present or in future, any right, title or
interest, whether vested or contingent, of the
value a one hundred rupees and upwards, to or
in immoveable property;
(c)non-testamentary instruments which
acknowledge the receipt or payment of any
consideration on accountof the creation,
declaration, assignment, limitation orextinction
of any such right, title or interest; and
(d) leases of immoveable property from year
to year, or for any term exceeding one year,
or reserving a yearly rent;.
(e) non-testamentary instruments
transferring or assigning any decree or order
of a Court or any award when such decree or
order or award purports or operates to create,
declare, assign, limit or extinguish whether
in present or in future, any right, title or
interest, whether vested or contingent of the
value of one hundred rupees and upwards-, to
or in immoveable property".
Section 49 of the Registration Act prior to
its amendment in 1929 read :
"No document required by section 17 to be
registered shall-
(a)affect any immoveable Property comprised
therein, or
(b) confer any power to adopt, or
(c)be received as evidence of any
transaction affecting such Property or
conferring such power, unless it has been
registered".
By section 10 of the Transfer. of Property
(Amendment) Supplementary Act, 1929, section
49 was amended as follows.-
"No document required by section 17 or by any
provision of the Transfer of Property Act,
1882 to be registered shall-
(a)affect any immoveable property comprised
therein, or
(b) confer Any power to adopt, or
(c) be received as evidence of any
transaction affecting such property or
conferring such power unless it has been
registered.
Provided that an unregistered document
affecting immoveable property and required by
this Act or the Transfer of Property Act,
1882, to be registered may be received as
evidence of a contract in a suit for specific
performance under Chapter 11 of the Specific
Relief Act, 1877, or as evidence of part
performance of a contract for the purposes of
section 53A of the Transfer of Property Act,
1882, or as evidence of any collateral
transaction not required to be affected by re-
gistered instrument". The inclusion of the words "by any provision of the Transfer of Property Act, 1882" by the Amending Act, 1929 settled the doubt entertained as to whether the documents of which the registration was compulsory under the Transfer of Property Act, but not under section 17 of the Registration Act were affected by section 49 of the Registration Act. Section 4 of the Transfer of Property Act enacts that "sections 54, paragraphs, 2 and 3, 59 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908". It was previously supposed that the effect of this section was merely to add to the list ’of documents of which the registration was compulsory and not to include them in section 17 so as to bring them within the scope of section 49. This was the view taken by the Full Bench of the Allahabad High Court in Sohan Lal’s case(1). The same view was expressed in a Madras Case Rama Sahu v. Gowro Ratho(2) and by MacLeod C.J. in a Bombay case Dawal v. Dharma(3). We are however absolved (1) I.L.R. 50 All. 986. (2) I.L.R. [1921] 44 mad. 55. (3) I.L.R. [1918] 41 Bom. 550. in the present case, from examining the correctness of these decisions. For these decisions have been superseded by subsequent legislation i.e. by the enactment of Act 21 of 1922 which by inserting in section 49 of the Registration Act the words "or by any provision of the Transfer of Property Act, 1882" has made it clear that the documents in the supplemental list i.e. the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immoveable property comprised therein, and do not affect any such inmmovable property. We are accordingly of the opinion that Ex. A-26 being unregistered is not admissible in evidence. In ,our opinion, Mr. Sinha is unable to make good his argument on this aspect of the case. Mr. Sinha contended that in any event the High Court should not have remanded the case to the lower appellate court with a direction that the defendants should be asked to render accounts ,before they claim any payment from the plaintiff at the time of redemption of the mortgage. It was pointed out that the plaintiff did not file an appeal against the decree of the trial court and in the absence of such an appeal the High Court was not legally justified in ,,giving further relief to the plaintiff the an that granted by the trial court. In our opinion, there is justification for this argument. We accordingly set aside that portion of the decree of the High Court remanding the case to the lower appellate court with a direction that the defendants should, be asked to render accounts. otherwise we ’affirm the decree of the High Court allowing the plaintiff’s appeal with costs and setting aside the judgment and decree of the lower appellate court and restoring judgment and decree of the trial court dated 31st October, 1956. Subject to this modification we dismiss these appeals. There Will be no order as to costs in this Court. G.C. Appeals dismissed.